A Harare magistrate was yesterday accused of “convicting” MDC vice-chairman Tendai Biti before hearing evidence in a case in which the opposition leader is facing charges of public violence and prematurely announcing last year’s July 30 presidential election results.
Biti is being represented by human rights lawyers Beatrice Mtetwa and Alec Muchadehama.
Mtetwa unsuccessfully filed five court applications challenging the jurisdiction, application for splitting of the charges, application for requests of other court papers to prepare the defence, application for exception of the charges and application for the magistrate’s recusal.
She said presiding magistrate Grace Takundwa was complicit in the matter and must recuse herself, accusing her of exhibiting bias and being partial to the accused person.
Mtetwa said Takundwa had already decided Biti’s fate before evidence was placed before the court and, resultantly, filed an application for recusal, which was also dismissed by the court.
“When a judicial officer said the State has proved a prima facie case against the accused person before the evidence is submitted before the court of law, that means the fate of the accused person had already been sealed,” Mtetwa said.
On Monday, Takundwa issued Biti with a warrant of arrest despite that he had advised prosecutors that he was attending a matter at the Supreme Court, which traditionally takes precedence over magistrates’ court matters.
Mtetwa, however, complained against the warrant, describing it as malicious.
“The issuance of a warrant of arrest on Monday borders on malice. It shows incredible lack of impartiality, coupled with the court rulings. The accused person cannot have a situation where his defence outline is already decided before even the evidence submitted in court,” she said.
“To proceed to trial before a judicial officer who has already rejected the accused’s defence would clearly be a breach of the accused person’s right to a fair hearing. The State did not lead any evidence at all, clearly all left is for you to announce the verdict of guilty on all charges. The accused’s fate has already been decided.”
But the State, represented by Jonathan Murombedzi, opposed the application, saying the court handled the matter impartially.
“The attack on the State for having issued a warrant of arrest lacks merit. No court will allow the accused to dictate how the court will proceed. To ask the [magistrate] to excuse herself on personal reasons was totally contemptuous,” he said.
“What if the accused did not turn up before the court? What guarantee was there that he was to turn up? What was done was done out of caution and, therefore, there is no basis upon which this court must recuse itself.”
Takundwa dismissed the application to recuse self, saying she was presiding over the case with impartiality.
The matter proceeded to trial.